The judgment emphasizes the limited scope of challenge under Section 37 of the Arbitration and Conciliation Act, 1996 and the principle that errors of fact cannot be corrected through judicial review.

Jyoti Singh, J.

Fao(Os) (COMM) 290/2018 and C.M. Appl. No. 51343/2018 (for stay)

1. The present appeal has been filed by the appellant assailing the order dated 26.10.2018 passed by the learned Single Judge in O.M.P. (COMM) 64/2017 whereby the learned Single Judge has dismissed the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") and has upheld the Award dated 27.12.2012 passed by the learned Arbitrator except for the rate of interest which has been reduced to 8% instead of 12% per annum awarded by the learned Arbitrator

2. The brief and relevant facts are that the appellant, who was the respondent in the arbitral proceedings had entered into a Memorandum of Understand (hereinafter referred to as "MOU") dated 25.12.2007 with the respondent, who was the claimant before the Arbitrator. By virtue of this MOU the appellant had taken on lease the premises bearing no. 3/1/22, Site IV, Sahibabad Industrial Area, Ghaziabad, U.P. (hereinafter referred to as "the suit property") at a monthly lease amount of Rs.3,30,000/- for a period of nine years with a lock-in period of 15 months. The lessee/appellant had the liberty under the MOU to terminate the agreement prior to the expiry of the lease period by giving a three months notice in writing. The lessor however did not have the option of terminating the lease. One of the important and relevant clauses in the MOU was that the lessor had to get the user of the premises changed from "manufacturing corrugated boxes" to "software development unit" within a period of three months from the date of signing of the MOU.

3. The appellant paid rent till September, 2008 but thereafter the payments were stopped. This resulted in issuing of a notice dated 22.10.2008 by the respondent, who called upon the appellant herein to execute the lease deed and pay the rental amount. On 10.11.2008 the respondent invoked the arbitration clause. The appellant immediately thereafter on 14.11.2008 filed a suit in the Court of Civil Judge seeking a declaration that the MOU be declared as null and void, and an order of restraining the respondent, its agents from removing the articles of the appellant from the premises and obstructing the appellant and its workers from removing his articles. A direction was also sought to the respondent to accept the vacant possession of the suit premises or in the alternative permission was sought to deposit the keys of the premises in the Court. In the said suit an application under Section 8 of the Act was moved and thus in Arbitration Petition No. 33/2009, a Sole Arbitrator was appointed. The Arbitrator having been appointed on 3.7.2009, entered reference. The respondent filed his claims. Claim Nos. 1, 2, 3 and 6 were for rent for the period 1.10.2008 to 31.5.2010 at the rate of Rs.3,30,000/- per month. Claim no. 7 was for damages of Rs.40,00,000/-. Cost of Arbitration and interest @ 12% p.a. was also claimed. The appellant filed his counter claims for cost of goods lying in the premises and sought Rs.50,00,000/- under this head. He also sought refund of the security deposit of Rs.9,90,000/- as well as damages of Rs.20,00,000/-.

4. The learned Arbitrator vide his Award dated 27.12.2012 allowed the claim for the rent @ Rs. 3,30,000/- p.m. from 1.10.2008 till 30.4.2009 (up to the lock-in period) and @ Rs.1,65,000/- from 1.5.2009 to 31.5.2010 (up to handing over possession), totalling to Rs.44,55,000/-.

5. Rs.5,00,000/- was awarded towards damages and Rs.2,00,000/- towards cost of arbitration proceedings along with Rs. 82,500/- as share of arbitration fees & expenses. The Arbitrator also awarded interest at the rate of 12% per annum. The counter claims of the appellant were disallowed except for refund of security deposit of Rs.9,90,000/-.

6. The appellant challenged the said Award by filing OMP No. 740/2013 before the learned Single Judge of this Court, which was dismissed on 25.09.2014 as there was a delay in re-filing